REGINA v GAVIN SMART and DAVID CHARLES BEARD [2002] EWCA Crim 772

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT CARDIFF

His Honour Judge Jacobs

[2002] EWCA Crim 772

Case No Case No: 2000/3019/Y2 & 2000/2883/Y2

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

REGINA

GAVIN SMART and DAVID CHARLES BEARDRespondent

Before

Lord Justice Clarke

Mr Justice Leveson

Mr Justice Cooke

Mr Michael Mather-Lees represented the Appellant Smart

Mr Peter Davies represented the Appellant Beard

Mr Stephen Hopkins QC represented the Crown

Date 27 March 2002

Lord Justice Clarke:

Introduction

[1]This is the judgment of the court. The appellants are Gavin Smart and David Beard, who are aged 29 and 49 respectively. On 19 April 2000 at the Cardiff Crown Court before His Honour Judge Peter Jacobs and a jury both Smart and Beard were convicted on count 1 of the indictment of conspiracy to supply a Class B drug, namely cannabis resin, between 1 January 1998 and 31 March 1999. Smart was also convicted of conspiracy to supply a Class A drug, namely cocaine, between the same dates (count 3) and of 2 counts of possession of a Class A drug, namely ecstasy, in the form of 4 tablets of MDMA (count 8) and 1 tablet of MDA (count 9) on 4 June 1999.

[2]On 7 July Beard was sentenced to 9 years’ imprisonment and ordered to pay £330 under the Drug Trafficking Offences Act with 14 days’ imprisonment consecutive in default. Smart was sentenced to 6 years’ imprisonment on count 2 and 4 years’ imprisonment on each of the other counts, all sentences to run concurrently. A confiscation order in the sum of £9,061 was made against Smart, with 6 months’ imprisonment in default. There were a number of co-defendants. The principal conspirator was Martin Harris, who pleaded guilty to conspiracy to supply cannabis resin (count 1), MDMA (count 2), cocaine (count 3) and amphetamine (count 4). He was sentenced to 14 years’ imprisonment on count 3 for the conspiracy to supply cocaine and 12 years’ imprisonment on each of the other counts to run concurrently. A confiscation order was made in his case in the sum of £35,364.31 with 18 months’ consecutive in default His father, Norman Harris, pleaded guilty to count 1 and was sentenced to 66 months’ imprisonment. A confiscation order was made in the sum of £30,000 with 18 months consecutive in default. Sean Toms pleaded guilty to counts 1, 2 and 3 and was sentenced to 5 years on each of counts 1 and 2 and 7 years on count 3, all to run concurrently. Philip Evans pleaded guilty to counts 1 and 2 and was sentenced to 10 months concurrent on each count. Neil Francis pleaded guilty to count 1 and was sentenced to 45 months’ imprisonment. Melvin Jones faced counts 1 and 4 but died with the result that the indictments were of no effect. Nicholas Aldron pleaded guilty to counts 1 and 4 and was sentenced to 27 months on each concurrently. He also pleaded guilty to count 10, which alleged supplying cocaine, and was sentenced to a concurrent sentence of 42 months imprisonment. Various confiscation orders were made in some of those cases to which it is not necessary to refer.

[3]Smart appeals against conviction by leave of the single judge, Gibbs J. Beard also appeals against his conviction by leave of Gibbs J, although his appeal in part raises different questions from those which arise in Smart's appeal. Beard also renews his application for leave to appeal against sentence after refusal by the single judge, Rafferty J, although we adjourned that application to be heard, if necessary, after determination of his appeal against conviction. The Crown Case

[4]Central to the case for the Crown was that there was a large, well organised criminal enterprise involving the wholesale distribution of both Class A and Class B drugs throughout South Wales orchestrated by Martin Harris and lasting over twelve months. Since these appeals concern only the cases of Smart and Beard, it is not appropriate to set out here the whole of the Crown case as it was put against all the conspirators. It is sufficient to summarise it much as the judge did in the course of his summing up.

[5]At the centre was Martin Harris, who was helped by his father Norman Harris and his right hand man Toms. It also involved Beard, Jones, Binding and Richards, who were recipients of large quantities of controlled drugs. Binding and Richards also acted as couriers and Hopkins was only a courier. Evans allowed his house to be used as a safe house for keeping drugs in. Although there was a Swansea connection, the operation centred round Cardiff. Smart was a receiver of drugs from Martin Harris and, at the very least, a retail distributor. The operation resulted in the seizure of 26,000 ecstasy tablets worth about £250,000, 1.2 kilograms of cocaine worth about £150,000 and 120 kilograms of cannabis resin worth about £500,000.

[6]The nature of the conspiracy or conspiracies alleged is central to Smart’s appeal. The Crown contended that Smart was an outlet for Martin Harris from whom he received both cocaine and cannabis resin, which he would then retail. The case against Beard was that he assisted Martin Harris in dealings in cannabis resin and also that he received large quantities of cannabis resin with a view to distribution to other dealers. Both appellants accepted that Martin Harris was involved in drug dealing on a large scale but each denied that he was a party to any conspiracy to supply drugs as alleged or at all. Sharp’s Appeal against Conviction The Cocaine Count

[7]The principal point taken by Mr Mather-Lees on behalf of Smart is that the judge should have withdrawn count 3, which alleged conspiracy to supply cocaine (‘the cocaine count’), from the jury at the end of the Crown case. He accepts, in our judgment correctly, that there was evidence to leave to the jury that Smart was a party to a conspiracy to supply cannabis resin, but submits that there was no evidence which was admissible against Smart that he was a party to a conspiracy to supply cocaine.

[8]He submits that the relevant principles are correctly summarised in paragraph 33-60c of Archbold 2002 as follows:

“It is a matter for the trial judge whether any act or declaration is admissible to prove the participation of another. In particular, the judge must be satisfied that the act or declaration (i) was made by a conspirator, (ii) that it was reasonably open to the interpretation that it was made in furtherance of the alleged agreement and (iii) that there is some further evidence beyond the document or utterance itself to prove that the other was a party to the agreement.”

[9]There are four grounds of appeal. In ground 1, Mr Mather-Lees submits that, in so far as the Crown relied upon the acts or statements of Martin Harris against Smart, the evidence did not satisfy limbs (i) and (ii) above and was inadmissible and/or was so speculative that the judge should have withdrawn the cocaine count from the jury. In ground 4, it is said that the evidence was inadmissible and/or that the cocaine count should have been withdrawn from the jury because the evidence did not satisfy limb (iii). We will consider these grounds first, before turning to grounds 2 and 4, which relate to counts 1, 8 and 9. We consider first the evidence relied upon by the Crown. Evidence relied upon by Crown

[10]The evidence relied upon by the Crown was of several different types as follows: evidence of Martin Harris’ role in the whole operation, evidence of association with him, recorded conversations (the “DAT tapes”), evidence resulting from the search of Smart’s premises, evidence of the value of the drugs and evidence found in the possession of Harris including what the Crown said were records of supply of both cannabis resin and cocaine and records of telephone numbers relating to Smart which were in the possession of Martin Harris.

[11]As to evidence of association, the Crown relied upon a number of admissions made by Smart in interview after he was arrested on 4 June 1999. For example, when asked about his involvement with Martin Harris, he said that it was through someone called Pete the Greek who had asked him to pass a message to Martin Harris. Harris had obtained his phone number from Pete the Greek. Harris then phoned him and asked him if he had the letter from Pete the Greek. It was subsequently handed over in a pub, where Harris said that he wanted information about the buying of properties. Harris also asked him if he was interested in buying drugs, namely cannabis, but he said that he was not. He bumped into him some considerable time later at a night club, but again said that he was not interested in buying drugs. He said that Harris gave him the phone numbers of some friends of his. Harris had come round to his house on two occasions. On the second occasion he came at a time when he, Smart, understood that Harris was in some trouble and he told Harris that he was not welcome.

[12]As to the recorded conversations relied upon by the Crown, they arose in this way. The police put a covert listening device in Martin Harris’ car. We will return to this part of the police operation in the case of Beard, but in Smart’s case the Crown relied upon two conversations which it said were between Harris and Smart. The first was on 23 rd March, which was on the same day as a meeting between Harris and Beard outside the shop Toys ‘r’ Us to which we refer further below. The conversation was denied by Smart, but, as we see it, the evidence of the tapes as to what Harris said is direct evidence admissible against Smart and not hearsay. It would be a matter for the jury whether they accepted that Smart was indeed the other party to the conversation. The Crown case was that the jury could be sure that Smart was, as it were, on the other end of the phone because Harris referred to him as ‘Gar’ and he admitted in interview that Harris did address him as ‘Gar’.

[13]Harris’ end of the conversation was recorded as follows:

“Hello, who’s there? Hello Gar, all right, yeah, yeah. Right ready. 0778892866, it’s Neil it is. Right Gar but don’t say a fucking word to anybody, he’s got the stuff. All right, get it on your own and don’t tell no fucker, all right, butt. It’s Neil who’s got the stuff up there (inaudible). You’re laughing, thanks Gar, fourteen and a half, all right.”

The Crown’s case was that the reference to Neil was a reference to Neil Francis, who was one of the conspirators. There was evidence that the number 07788932866 was only one digit different from Neil Francis’ number. The Crown further said that the reference to fourteen and a half was a reference to the price which Smart was paying Harris for half a kilogram of cannabis resin. In that regard it relied both upon documents found in Smart’s flat after his arrest and upon documents which it said had been in the possession of Harris: see below. In short the Crown relied upon the conversation as direct evidence of a drugs’ deal between Smart and Harris, albeit relating to cannabis resin and not to cocaine.

[14]Shortly before Harris was arrested, about 7.05 pm on 30 March 1999, the police recorded a further telephone conversation between Harris and Smart. It was not disputed at the trial that Smart called Harris on the telephone in his car or that the recorded conversation took place. In the conversation Harris again referred to the caller as ‘Gar’. The issue at the trial was what, if any, inferences could be drawn from the conversation.

[15]The police only heard Harris’ end of the conversation as follows:

“Hello who’s that? Hi Gar, yeah yeah …. Have they? No, no, no, yeah, all right butt. This girl who you know, knows a boy whose father’s a copper, your sister, yeah, no, no, OK. You think they’re just waiting. Why don’t they come and get me. You never, no, thanks very much. I don’t know what they know or they’re waiting a bit. Yeah, of course, yeah, yeah. Fuck, Gar, I know that, yeah, yeah, oh Mike the man from the Rhondda, that’s all right, don’t worry. If you hear anything you can tip me off, time to get out of the country. I will know him. I know every cunt, I won’t come round no worries, butt. I was gonna go down but I stayed in. Who, Ed, I won’t say. Yeah, yeah, that’s all right, I’ll be in touch tarra.”

The Crown said that that was evidence that Harris and Smart were associates and that the reference to Ed was a reference to the Ed referred to in what it said were the drug dealing records found in Harris’ possession. The Crown further said that the purpose of that conversation was to tip Harris off that the police were on to him.

[16]Harris was arrested shortly after that conversation but Smart was not arrested until 4 June. When he was, the police found a number of items in his flat upon which the Crown relied. They found £18,500 in cash, of which £10,000 was in one package, £6,000 was in another and further sums of £1,850, £900 and £50.59 were also recovered. The five ecstasy tablets which formed the basis of counts 8 and 9 were found behind a tile in the bathroom and a number of documents were also recovered.

[17]While still at the flat, Smart was asked whether there were any drugs there and he at first said that there were not but that there was some money, ‘16 grand’, in a bag for a party which he was organising. He said that he could provide the names of the people who had contributed money for the party after he had seen a solicitor. In the event, he did not do so until he gave evidence at the trial. When asked at the flat if he was sure that there were no drugs there he said there was a ‘bit of personal’ in the book and also more money in his jacket pocket.

[18]The Crown placed particular reliance on some of the documents found at Smart’s flat. There was a book of phone numbers which included Martin Harris’ number. The most important document was, however, a volume of ‘Yellow Pages’ upon which the Crown placed most reliance. It did so by reference in part to evidence of the value of drugs given by DC Taylor, who is an experienced Drugs’ Squad officer. He said that cannabis resin is sold by the gram or kilogram, cocaine by the ounce and ecstasy by the tablet. He put the value or price of cannabis at between about £1,150 to £1,300 a kilogram and of cocaine as between about £1,000 and £1,400 an ounce.

[19]There were a number of notations on one of the pages of the volume of ‘Yellow Pages’ and also on a card found inside. The evidence of most potential significance was found on the card. It contained notations to this effect: V=¼R+2P, C=1R, CH=1R, H=1R and T=½R, all of which were crossed out. Underneath there appeared similar notations, namely D=2R+¼N, CY=5R, H=1R, J=¼R, CH=1R, SP=¼R and M=¾R, all of which were again crossed out. Underneath that second set of crossed out figures there appeared a further series of similar notations including CH=1R+½P, V=5R, H=1R, Jo=½P and D=½P, none of which was crossed out. The Crown said that those entries or notations were a record of sales of cannabis resin or ‘R’ and of ecstasy tablets or ‘P’ (for pills) and that the entries were crossed out when the buyer had paid for them. There was another list including: Vic 250, Jon 300, D 275, C 160 and 250, which again the Crown said was a record of drug deals. There was also a reference to Ed 2375, which the Crown said was a reference to the same Ed as appeared in Harris’ drug dealing records and as was referred to in the second of the two phone conversations referred to above. Smart denied in interview that he dealt in drugs and that those were records of any such thing.

[20]The Crown also relied upon evidence which it said emanated from Harris. This was important evidence both against Smart and against Beard, to whom we return below. The evidence was obtained from five sources. First, on 9 November 1998 the police found some documents in the refuse outside Martin Harris’ father Norman’s house. Secondly, they found some fragmented notes at the Holiday Inn in a room in which Harris and his girlfriend had stayed on 10 March. Thirdly, they found an address and telephone book at the home of Martin Harris’ girlfriend on 30 March. Fourthly they found a notebook at the same time and place and fifthly they found some papers stuffed down the seat of a police vehicle in which Harris was taken to the police station on 31 March after being arrested.

[21]Only the second, third and fourth of those were relied upon as evidence of the involvement of Smart. The telephone and address book contained telephone numbers for Gav or Gar, which the Crown said was Smart. The most important documents, however, were the fragmented notes found at the Holiday Inn and the notebook, which the Crown said were both detailed records of the operation of the conspiracy or conspiracies. The Crown’s case was that both the notes and the notebooks contained the accounts which it was necessary to keep in order to conduct an orderly drug-dealing business.

[22]The notes were pieced together and were found to contain entries with lists of names and figures noted against each. There were a number of pages, of which we refer only to some. Page GPJ2d consists of names, including Gar, with figures and a time against each name. All the entries are crossed out. The Crown said that it was a list of people buying drugs and the amount they paid. Page GPJ2e consists of lists of names in columns. The first column has 20 names against each of which there is an entry such as 4K or 5K. The Crown said that ‘K’ was a reference to kilograms and that the column was a record of cannabis resin sold to each of the people named. The second column also consists of a list of names with a number such as 1000 or 500 against each. The Crown said that it was a record of the number of ecstasy pills sold to each. All the names and amounts are crossed out, but under the second column is written ‘2600 left’. The Crown said that that was a reference to there being 2600 pills unsold, which were probably the 2567 pills found at Evans’ house.

[23]There are also two columns of names on GPJ2e similar to the columns on GPJ2d, which the Crown again said evidenced buyers and amounts paid. One of the entries, which is crossed out like the others, appears to say ‘Gar 5430’ or ‘Gav 5430’. There is also a list of four names, against which is written ‘8oz, 1oz, 6oz and 1oz’. Those entries are also crossed out and, on the Crown’s case, evidenced sales of cocaine in ounces.

[24]There are two other series of figures on GPJ2e relied on by the Crown. At the top of the column with the names and the number of ounces against them is written 3x9 and 18x1 and underneath is written ’14 left’. None of those entries is crossed out. Indeed the figures 3x9, 1x6 and 18x? are written further down the page. The Crown said that when Evans house was searched a number of packets of cocaine were found as follows: 3 packets of 9 ounces, 2 packets supposedly containing 5 ounces each in 1 ounce deals and 1 packet supposedly containing 8 ounces, also in 1 ounce deals. Those would add up to 18 ounces, but there were some missing from each, so that only 14 ounces were found and not 18 ounces. The Crown submitted that the 3x9 entry on page GPJ2e was a reference to the 3 packets of 9 ounces subsequently found, that the 18x1 was a reference to the original quantity of 18 ounces and that the reference to ‘14 left’ was a reference to the 14 ounces which were subsequently found at Evans’ house.

[25]On page GPJ2g there is also a reference to 3x9. There are also similar lists which are not crossed out. They include entries which read ‘Gavin 2’, ‘Ed 1oz’ and Gavin 1oz’. Page GPJ2h also contains lists of names against each of which is written a number of ‘K’, a number of ‘oz’ or a number in ‘£’. On GPJg and h some of the entries have ticks against them and some have ticks which have been crossed out against them. The Crown case was again that those are records of drug dealing in both cannabis resin and cocaine.

[26]Finally, on GPJ2i there appear a number of names including ‘Gar’ or ‘Gav’. To the left of the name is a telephone number which is the same as the telephone number against ‘Gav’ in the telephone and address book referred to above. Immediately to the right of the name is the figure of 5430, which the Crown said was money owing by Smart, and to the right of the figure of 5430 is the number 405278, which the Crown could independently show was the telephone number of an account in Smart’s name.

[27]The notebook contains similar but much more detailed records of a series of transactions under a considerable number of different names, many of which also appear in the notes described above. They include Terry, Liam, Paul, Frank, Roger, Marc, Craig, Alex and others, including, crucially for present purposes, ‘Dave B’ (whom the Crown said was Beard) and ‘Gav’. Each name has one or more pages to itself. Thus Dave B and Gav have a page each and each page shows a running total which the Crown said, with force, was the amount due at any time. Thus, in the case of Gav there are a series of columns. The left hand column has these figures: 930+450+900+2900. Under those figures is a line and then the figure 5180, which is of course the sum of those figures. To that figure of 5180 there is added the figure of 250 and a total of 5430, which is the same figure as appears against ‘Gav’ on GPJ2i. The Crown also observed that the +450 and the +400 were consistent with the evidence of the price of cocaine and that the figure of +2900 is twice 1450, which is consistent with the 14½ figure referred to in the first of the phone conversations said to be between Harris and Smart which is quoted above. Gav’s page also has other columns of figures which it is not necessary to set out, but which have references to 1450 and to 5800, which is of course four times 1450. The Crown said that the figures on that page supported the case that Gav, namely Smart, was party to an agreement both for the supply of cannabis resin at £1450 for half a kilogram and for the supply of cocaine at about £900 an ounce. They also sought to cross-refer the 900 on Gav’s page to the ‘Gavin 1oz’ entry on page GPJ2g of the notes found at the Holiday Inn.

[28]We turn to the question whether the judge should have held that the evidence deriving from Harris was inadmissible on the cocaine count or have ruled that that count should have been withdrawn from the jury. It is convenient to do so by reference to the three limbs of the principle set out in the passage from paragraph 33-60c of Archbold quoted above.

(i) and (ii)

[29]Mr Mather-Lees submits that the evidence obtained from documents which had been in Harris’ possession and indeed from the phone conversations set out above is either inadmissible or does not support the cocaine count. He first submits that the notes and the notebook were not acts or declarations in the course or furtherance of any conspiracy because they were simply matters recorded for Harris’ convenience or recorded after the conclusion of the conspiracy and that they are not therefore admissible in accordance with the principle in cases like Devonport and Pirano [1996] 1 Cr App Rep 221. We are not, however, able to accept that submission. There was ample evidence in the notes and notebook that Harris was keeping a running record of his various drug dealings as the conspiracy progressed. Every business needs a system of accounting on a regular basis. These documents were reasonably open to the interpretation that they were ongoing records of drug dealing and that they were therefore acts or statements made by Harris in the furtherance of the conspiracy.

[30]Mr Mather-Lees next submits that the jury could not safely infer that either the notes found at the Holiday Inn or the entries in the notebook related to dealing in cocaine. He submits that the Crown’s explanation for them was too speculative to enable such an inference to be drawn. For example, he submits that the Crown’s suggestion that the 900 figures referred to the price of cocaine is not consistent but inconsistent with the evidence of DC Taylor because his range was between £1000 and £1400. Although we accept that there were submissions of that kind which could be made, they were essentially matters for the jury. In our judgment, the Crown’s case derived from the documents which we have set out above was (and is) sufficiently soundly based for the jury to infer that the references to ‘oz’ were indeed references to ounces of cocaine, that the references to Gar or Gav were references to Smart and that the notes and the notebook together provided evidence from which the jury could properly infer that Harris was supplying Smart with both cannabis resin and cocaine.

[31]In these circumstances we have reached the conclusion that the evidence relied upon by the Crown based on the materials derived from Harris which we have set out in some detail were acts or declarations made by a conspirator, namely Harris, in furtherance of the alleged agreement, namely the agreement or agreements for the supply of both cannabis resin and cocaine. It follows that question whether it was admissible against Smart depends upon whether limb (iii) is satisfied. Limb (iii)

[32]Mr Mather-Lees submits that, although limb (iii) was satisfied in the case of the conspiracy to supply cannabis resin, it was not satisfied in the case of the alleged conspiracy to supply cocaine. It will be recalled that the documents found in Smart’s flat were the Yellow Pages and the card which were said to refer only to cannabis resin and ecstasy by the initials ‘R’ and ‘P’. In these circumstances Mr Mather-Lees accepts that that is direct evidence, admissible against Smart, that he was a party to a conspiracy to supply specifically cannabis resin, especially when coupled with the evidence of association with Harris, with or without the two telephone conversations recited above. He therefore correctly accepts that, on the assumption that the judge was correct to admit the evidence in the book found in Harris’ house that he supplied cannabis resin to Smart, the judge was also correct to leave the cannabis resin count to the jury.

[33]However, Mr Mather-Lees submits that the cocaine count should not have been left to the jury because there was no evidence of an agreement to supply cocaine (as opposed to cannabis resin) which was directly admissible against Smart. Since, in the terms of limb (iii) as formulated in Archbold, ‘the agreement’ alleged in count 2 was an agreement to supply cocaine, it follows that there was no further evidence beyond ‘the document or utterance itself’ made by an alleged co-conspirator, viz the contents of Harris’ drug dealing book, and that the contents of the book were not admissible against Smart in so far as they support the case that Smart bought cocaine as well as cannabis resin.

[34]Although we recognise that the evidence directly admissible against Smart does not refer to cocaine, we are unable to accept that submission. Mr Mather-Lees construes the expression ‘the agreement’ in limb (iii) as set out in paragraph 33-60c of Archbold as meaning that the further evidence directly admissible against Smart that he was a party to the agreement must be specific evidence that the agreement was for the supply of a specific drug, here cocaine. In our view that is to give too narrow a construction to the expression ‘the agreement’.

[35]Although this point does not appear to have been expressly considered in the authorities, in Donat

(1986) 82 Cr App R 173

at 179, Lord Lane CJ, giving the judgment of this court, quoted this passage from the 6 th edition of Cross on Evidence :

“In determining whether there is such a common purpose as to render the acts and extra-judicial statements done or made by one party in the furtherance of the common purpose evidence against the others, the judge may have regard to these matters, although their admissibility is in issue, as well as to other evidence. This doctrine is obviously liable to produce circularity in argument.”

Shortly after that, Lord Lane continued:

“But the learned editor of Cross goes on as follows: ‘The answer is that the agency may be proved partly by what A said in the absence of B, and partly by other evidence of common purpose. It makes no difference which is adduced first, but A’s statement will have to be excluded if it transpires that there is no other evidence of common purpose; it is another instance of conditional admissibility.”

[36]It seems to us that that approach requires merely that there be some other evidence of common purpose. We can see no reason in principle why it should not be sufficient for that evidence to be admissible evidence that the common purpose was the supply of illegal drugs. The approach in Donat was followed in Devonport and Pirano , where Judge J, giving the judgment of this court, said (at p 226) that a particular document was admissible against the appellants if it constituted an act or declaration in furtherance of the conspiracy “provided that there was some further evidence beyond the document itself that they were parties to the conspiracy alleged against them”. The court was not addressing the question for decision here, but we do not read that statement as narrowing the formulation approved in Donat . On the contrary, as Judge J put it, there must simply be “some further evidence” of the conspiracy alleged against the conspirators. Here there was some further evidence going so far as to establish an unlawful agreement, even though it did not establish that the agreement related specifically to cocaine.

[37]We consider that this is borne out by the decisions in R v Gray

(1995) 2 Cr App R 100

as explained in R v Murray

[1997] Cr App R 136

at 145 – 148, where the distinction was drawn between cases where the defendants were charged with different substantive offences, and cases where the defendants were charged with conspiracy or with the same substantive offence but where a joint enterprise was clearly alleged. In giving the judgment of the court, at p 147, Otton LJ approved a passage from the 13 th edition of Phipson on Evidence , which is now to be found in the 15 th edition at paragraph 29-11 to the effect that “the acts and declarations of other conspirators are receivable against [the defendant] only to prove the origin, character and object of the conspiracy … (our emphasis).” We also note in passing that the court also approved the following passage from Blackstone on Criminal Practice at chapter F paragraph 16.52:

“As and exception to the hearsay rule [the rule] defies classification, some writers regarding it as appertaining to the res gestae ... others as based on implied agency and others as an independent exception … ”

[38]As stated above, there was ample direct evidence that Smart was a party to an agreement with Harris for the supply of drugs. That being the case, it seems to us that any act or declaration by another party to the agreement in furtherance of the alleged conspiracy to supply particular drugs is admissible against Smart. As we see it, the purpose of the principle is to ensure that an alleged conspirator or party to a joint enterprise is not convicted solely on the basis of evidence which would not be admissible against him because to admit it would offend against the hearsay rule. Thus Smart could not have been convicted of conspiracy to supply either cannabis resin or cocaine if the sole evidence against him were statements made in his absence by Harris, albeit in the furtherance of the conspiracy, unless of course the evidence was otherwise admissible as, say, part of the res gestae or otherwise.

[39]It is not necessary for us to consider here the juridical basis for the rule because it is correctly accepted that, if the entries on the documents were made by Harris in the course or furtherance of the conspiracy, limbs (i) and (ii) are satisfied (as in our judgment they were), the only remaining question is whether limb (iii) is satisfied.

[40]In our judgment, limb (iii) is satisfied. As we see it, the purpose of the principle is, at least in part, to admit evidence of the object, terms and scope of the agreement, always assuming that, by the conclusion of the evidence, there is some other directly admissible evidence of the fact of the agreement between the conspirators. If it were necessary for the evidence directly admissible against the alleged conspirator to prove all the terms of the agreement, there would be no purpose in the principle that acts and declarations by A in the course or furtherance of a conspiracy are admissible against the alleged co-conspirator B.

[41]This can perhaps be tested by an example. Suppose the evidence directly admissible against B proved that he was a party to an unlawful conspiracy to supply drugs but did not point to the particular drug which was to be supplied under the agreement. The logic of Mr Mather-Lees’ submission would lead to the conclusion that evidence of an act or declaration of A in furtherance of the conspiracy which showed that the drug which was the subject of the conspiracy was, say, cocaine would be inadmissible against B as evidence that the conspiracy was for the supply of cocaine. Such a conclusion would, in our judgment, be contrary to the rationale of the principle which justifies the admission of the evidence in the first place, namely to admit evidence of the basis and scope of the agreement. Once there is evidence from which the jury can infer that there has been an agreement between A and B, what A says becomes admissible against B; in this example, there is evidence of the unlawful agreement which then allows the acts and declarations of A before the jury to prove its breadth.

[42]In this case, it is wrong to say that the evidence of agreement and common purpose sufficient to found the conspiracy in relation to cannabis resin must all be ignored when it comes to consider the allegation of conspiracy to supply cocaine. The evidence of association and of the activities of Smart in relation to Harris provided material from which the jury could legitimately infer that both were involved in a joint enterprise in relation to innominate drugs. Thus the evidence of Martin Harris’ book becomes admissible to identify the drugs in question. Bearing in mind the way in which the book has been written, and the fact that the jury could clearly conclude that it constitutes a record of the state of the account as between Harris and Smart (as well as others) and is thus in furtherance of the conspiracy, it seems to us to make no sense to hold that the evidence in the book that the agreement covered the drug cocaine as well as the drug cannabis resin is inadmissible for the former purpose while being admissible for the latter. The jury were properly entitled to consider the contents of the book in their entirety to determine whether the agreement between Harris and Smart was limited to cannabis resin or also extended to cocaine.

[43]In these circumstances we have reached the conclusion that the evidence directly admissible against Smart that he was a party to an unlawful conspiracy with Harris for the supply of drugs including cannabis resin is sufficient to satisfy limb (iii). It was then a matter for the jury to decide where the truth lay. It follows that the judge was, in our judgment, correct both to admit the evidence deriving from Harris as evidence against Smart and to leave the cocaine count to the jury. It further follows that grounds 1 and 4 of Smart’s appeal fail.

[44]We should perhaps add that we have also considered whether any of the above aspects of the evidence leads to the conclusion that Smart’s conviction was unsafe on the cocaine count viewed as at the end of the case. We have concluded that the answer is no. Smart gave evidence in his defence and called some witnesses to support his case as to the origin of the money found in his flat. It was for the jury to assess that evidence, just as it was for the jury to assess his explanation of the notes on the card found in Yellow Pages. His explanation was that the figures were related to Chaos Theory. The Crown submitted that it was clear from Smart’s cross-examination that he knew little or nothing about Chaos Theory and that those figures were evidence of his drug dealing, albeit in cannabis resin. All these were matters for the jury, who were perfectly entitled to reject his explanation, consider the breadth of his agreement with Harris and thereafter reach conclusions adverse to him in relation to cocaine. The Cannabis Resin Count

[45]Ground 2 of Smart’s appeal is simply that, if the judge was wrong not to withdraw the cocaine count from the jury, his conviction on count 1 (“the cannabis resin count”) would also be unsafe because, if the cocaine count had been withdrawn from the jury, Mr Mather-Lees would have submitted that the jury should be discharged on the cannabis resin count on the ground that the jury would have seen evidence which was unfairly prejudicial to Smart. It follows from our conclusions on the cocaine count that this ground too must fail. The Ecstasy Counts

[46]Ground 3 is that possession of a total of 5 tablets of ecstasy was not a sufficient basis for the Crown’s contention that Smart was in possession of them with intent to supply. There would undoubtedly be some force in that submission if the only evidence were the fact that a total of 5 tablets were found. However, the Crown relied upon some of the evidence to which we have already referred. In particular it relied upon the card found in Yellow Pages with notations such as V=2¼R+2P (set out above), where it said that the P was a reference to pills of ecstasy. In these circumstances, we have reached the clear conclusion that there was evidence upon which the jury could safely conclude that the 5 pills found behind the tile in the bathroom were not only in Smart’s simple possession (which he accepted) but also in his possession with intent to supply. It was no doubt for this reason that, given that the other counts were left to the jury, Mr Mather-Lees did not invite the judge to withdraw the ecstasy counts from the jury. In our view, Mr Mather-Lees was right not to do so.

[47]We would only add that Mr Mather-Lees also submits that the evidence of DC Taylor that ecstasy is normally taken in the form of either half or one tablet was inadmissible. He relied upon Edwards , an unreported decision of this court dated 19 October 2002 in which the court upheld the ruling of the trial judge that certain evidence was inadmissible. The issue at the trial was whether the defendant was in possession of 28½ ecstasy tablets in a night club with intent to supply. He had told police that he had bought 50 tablets at lunch time and that since then he must have consumed 18 or 20 tablets. In support of his defence of simple possession he wanted to call a witness who worked for Release, the drug advice charity, to say that he had regularly had contact with individuals who take in excess of 12 tablets in a session and that he would view a consumption rate of 1.25 tablets an hour over 16 hours as very high but still credible. The court said that it was clear that that evidence relied on the accuracy of what drug users had said to the witness and thus held that it was inadmissible as hearsay.

[48]The Crown had also wanted to call a police officer to say that it was normal for users to take 1 tablet a night (although he knew those who took 3 or 4), but that, with regard to the 28½ seized from the defendant, he knew from his experience that they could not be consumed within a 24 hour period without serious harm having been inflicted. However, like the proposed defence witness, the police officer had no medical knowledge. The court rejected the evidence of the police officer because it too was hearsay. Giving the judgement of the court, Henry LJ said that what on analysis each witness was seeking to do was to give opinion evidence, namely that taking x ecstasy tablets in y hours was or was not credible, and that that evidence was founded on hearsay and was inadmissible.

[49]In the instant case the defence did not object to the admissibility of DC Taylor’s evidence on the ground that it was hearsay. Mr Mather-Lees told us that he did not take this point at the trial because Edwards had not been decided at that time. However, in our view, if a party wishes to object to evidence on the ground that it is hearsay, he or it should do so at the trial. In any event, the evidence here is very different from that sought to be given in Edwards. If the evidence given by both DC Taylor and, indeed, Smart was based on observation and not on what he had been told it was admissible and not inadmissible. There is no basis upon which we could hold that it was hearsay and inadmissible.

[50]In any event, given that Smart himself acknowledged in evidence that normally one would not have more than one or two tablets for one’s personal use, even if DC Taylor’s evidence on this point was not admissible, we do not think that its admission made the jury’s verdict on these counts unsafe. It follows that ground 3 fails.

[51]It also follows that all Smart’s grounds of appeal fail. Since there is no other basis upon which we could hold that Smart’s conviction on any of the counts was unsafe, it follows that his appeal against conviction is dismissed. Beard’s Appeal against Conviction

[52]In his perfected grounds, Beard advances six grounds of appeal against his conviction on the cannabis resin count (count 1). Grounds 1, 2 and 4 challenge the admissibility against Beard of the documents derived from Harris to which we have already referred. Ground 3 is to some extent related to grounds 1, 2 and 4. Ground 5 challenges the admissibility of the evidence of the telephone conversations in Harris’ car in the form of DAT tapes produced by the covert listening device or ‘bug’. Finally, ground 6 challenges the way in which the jury were permitted to draw inferences from Beard’s refusal to answer questions in interview. The single judge gave leave on ground 6 only, although Beard has renewed his application for leave to appeal against conviction on the other grounds too. In the event the oral argument focussed principally on grounds 5 and 6, although we will consider the grounds in turn. Grounds 1 to 4

[53]Grounds 1 to 4 are closely linked. We have set out above the material deriving from Harris which the Crown relied upon as evidence of acts or declarations by Beard’s co-conspirator Harris in the course or furtherance of the conspiracy alleged. In grounds 1 and 2 Mr Davies submits on behalf of Beard that that evidence was not admissible because it did not satisfy limbs (i) and (ii) described above, in that the entries on the documents were recorded merely for Harris’ convenience and/or were an account of events which had already taken place, and were not acts or declarations in the course of furtherance of the conspiracy alleged. It is also submitted that the documents merely evidence Harris’ complicity in any one or more of three other conspiracies. Ground 3 relates to the admission of evidence relating to two men, namely Richards and Hopkins. Ground 4 alleges that, even if otherwise admissible, the evidence which is the subject matter of grounds 1, 2 and 3 should have been excluded either under section 78 of the Police and Criminal Evidence Act 1984 or by reason of

Article 6 of the European Convention on Human Rights

[54]The particular evidence deriving from Harris which was relied upon against Beard in that regard was as follows. In the documents found in the refuse was a list of names including ‘Dave B’, which the Crown said was the appellant Beard. Against his name was the number 393548, which the Crown could show was Beard’s telephone number and the figures 37075, 17500 and 4150, which the Crown said related to drug dealing. Among the documents found in the police car which had been carrying Harris after his arrest was another similar list of names with numbers against them. The list included ‘DB’ with 36200 and 749661 against his name. In the telephone and address book, against ‘Dave B’ there appeared the numbers 393548, which was crossed out and 07977 749661, which was not crossed out. Moreover, on the ‘Dave B’ page of the notebook there were again a series of figures which amounted to substantial sums and apparently evidenced a running account which the Crown said must have been drug dealing. At one time it appears that ‘Dave B’ owed Harris as much as £57,000. It also shows a figure of about 25000 at one time,

[55]We have already expressed our view that those records were kept by Harris in the furtherance of the conspiracy. For the reasons given in the case of Smart they were, in our judgment, admissible against Beard and satisfied limbs (i) and (ii) of the relevant test set out in paragraph 33-60c of Archbold 2002 and quoted above.

[56]Assuming the contents of the DAT tapes to be admissible in evidence, which is the subject of ground 5 and is discussed below, the Crown relied in particular upon a call which it said was made by Beard to Harris and received in Harris’ car on 22 March. The Crown could show that the call was made from Beard’s home phone. The tape recorded Harris’ end of the conversation in these terms:

“Hello, how are you Dave, all right butt, there’ll be a fair amount of work about tomorrow I expect. If you want any, give me a ring back. I’ll be about your area I’ve got your mobile no yeah. Be on the air tomorrow morning everything’s cool. Yeah, yeah, who’s out now oh fuck aye. I lent him ten grand last week. He just phoned me now, I know what’s going to happen to him. I told him. He come a bit clever but he can too. He’s fucked me again. Oh Dave, I told you before if you got a friend in me you got a good friend. I’m loyal. People are saying bad things, jealous cunts. I don’t give a fuck there’s so many people jealous of me Dave. They’re only saying that cos they done wrong or they’ve tried to rip me cos they owed me money. Every cunt in the world owes me money not far off. There’s a few quid about Dave. I can get it in as well like now and again. I’ll say I’ve had enough of this and I’ll go and get them. When you’re busy you haven’t got the time. I’ll pick one or two every week and I’ll go and target them. You can’t do it all at once. You’re in the house now are you? This is your new house number is it. Take good (inaudible) in the house butt (laughter) that mind you’re crazy on the blower in the house like, crazy. I’ll give you a buzz tomorrow tarra Dave.”

Very shortly after that conversation Harris is recorded as saying to his girlfriend who was in the car: …. He’s phoning me from his house now see. If he’s got his phone tapped or billing they’ve got my new number straight away. It’s crazy like. …. Dave, he owes me twenty five grand and a bit like. He’ll pay it all (inaudible).” It was the Crown case, by reference to other similarly recorded phone conversations with others, that the reference to ‘work’ was a reference to cannabis resin. It was also the Crown case that the reference to ‘twenty five grand’ was consistent with the entries in Harris’ notebook referred to above.

[57]On the next day, 23 March, some time before 2 pm, Harris is recorded as telephoning ‘Dave’, whom the Crown said was Beard. According to the tape he said:

“Hello Dave, it’s only Martin. Everything will be cool for later, in a bit, all right. Do you know this Terry bloke who owns Panasch Parlour? Do you know him at all? Does he own it on his own? Can you find out for me? I’m gonna meet him now. See you at 2 o’clock. I’m gonna buy it, yeah, I’m gonna buy it. 70-80 grand. … The fucking building.”

[58]There was also direct evidence of the conspiracy against Beard which satisfied limb (iii). It included the following. On 2 March 1999, during a period of extensive police observation of the activities of Martin Harris, he was seen in a Vauxhall Vectra car, which he often used, outside Beard’s house. On 23 March, at about 2 pm, not long after the last of the conversations set out above, Harris and his girlfriend were observed going into the Panasch Massage Parlour. At about 2.55 pm they met another person, whom the Crown said was being paid for drugs, outside Toys ‘r’ Us. Beard was also present, as evidenced both by a video and the evidence of a police officer.

The judge summed up this part of the evidence in this way:

“[The police officer] … saw Martin Harris by the telephones. There was a man with him. That was Beard. The Vectra was parked outside Toys ‘r’ Us and they were talking on the pavement. Martin Harris handed something to Beard from the passenger side of the car, a small piece of paper. Beard walked away, used a mobile phone while Harris was crouched down by his motor vehicle, then walked to the public telephone kiosk outside Toys ‘r’ Us and his view was obstructed. Shortly after, the Chrysler appeared, parked next to the Vectra, the precise Chrysler that was at Reading Services. It stopped behind Martin Harris’ car and a man got out, 40 years of age, balding. He approached Beard and they spoke. …. He spoke to Beard for about a minute or so, Martin Harris reappeared from the telephone kiosk, ran back to the car, shook hands with the Chrysler driver and Beard walked away toward Toys ‘r’ Us. Harris took a blue and yellow carrier and handed it to the Chrysler man, who put it in the front near side of the Chrysler. Harris and the Chrysler man had a conversation, went back to the vehicle, drove away. [The officer] stayed. Once Beard moved away, [the officer] followed to the Hayes. He met another man in a Volvo. That is now acknowledged to be his lodger. They were then talking and Beard had a piece of paper similar to the one he was given earlier. Then Beard walked away to the Hayes at 3.15 and the Volvo drove away. Then he went to the Newt and Cucumber.”

While Beard was in the Newt and Cucumber he was heard by another officer saying into his mobile phone “I definitely have it … I won’t let you down.”

[59]The Crown’s case was that the evidence of the video and of the officer recited above was evidence that Beard was involved in the receipt of drugs, some of which were found when Neil Francis was arrested later. The Crown further placed some reliance on the entries on various documents found in Beard’s possession when he was arrested, to which the judge referred at pages 66 to 69 of the summing up. It is not necessary for us to refer to them in any detail for the purposes of this application because the position is in our judgment clear. It is sufficient to say that the Crown relied upon various computations on documents found at Beard’s house, including jottings on a Happy Shopper notebook, as showing drug dealing on a substantial scale. The Crown also relied upon entries on telephone bills which accorded with entries in Harris’ diary.

[60]The Crown submitted that all the evidence set out above was admissible against Beard, some as direct evidence and some as the acts or declarations of a co-conspirator, namely Harris. In our judgment, the judge was correct to accept the Crown’s submission. It was of course then a matter for the jury whether they accepted the evidence as proving Beard’s guilt. In these circumstances we can see no reason why the judge should have excluded the evidence under section 78 of PACE or indeed by reason of

Article 6 of the European Convention on Human Rights

. We should add that, in the light of the decision of this court in Owen

[2001] EWCA Crim 1018

, delivered on 11 April 2001, Mr Davies did not press the argument based on Article 6. He was, in our judgment, correct not to do so.

[61]It follows that, at any rate on the assumption that the DAT tapes were admissible (see below), the application for leave to appeal on grounds 1,2 and 4 fails. As to ground 3, it is submitted that evidence should not have been admitted relating to Hopkins and Richards because it does not implicate Beard and cannot fairly be said to be evidence of the acts or declarations of co-conspirators in the furtherance of the conspiracy.

[62]The judge summed up this part of the case very shortly. He said this:

“2 nd March, we now come to the crucial period, the arrest of Hopkins and Richards at Blackmill, the recovery of the 26,111 ecstasy tablets. It starts with the observation of Martin Harris’ Vectra outside Beard’s home at Radyr Court, which the prosecution say is simply because Beard was there. He denies being there. Richards hired a car and was being watched. He was seen at a public house car park in Blackmill, then Hopkins arrived in an Astra, took a white bag out of his car and put it in the boot of Richards’ Astra. The police pounced. You will recollect that this is the one where the vehicles started to drive off and there was a bit of a crash of some description with a member of the public’s car. Richards was arrested, the boot was searched and the ecstasy tablets were found, along with £3,970 cash and the arrest of Hopkins the next day. This is the matter which, on all the context of the calls, plainly, Harris is referring to in later conversations, is he not? The prosecution also claim that that is the incident that smart is giving an account of when he talks about Harris calling at his home and pacing the floor, referring to his boys and the crash.”

[63]As we understand it, no objection was taken to the admissibility of this evidence before it was given. It may be that that was because the defence naturally wanted to exaggerate the role of Martin Harris, but, whatever the reason, having allowed the evidence to be adduced, complaint cannot now properly be made that it was admitted. In any event, the judge referred to the evidence as being of some relevance to Smart’s position and not to that of Beard. No complaint is made on behalf of Smart, either that the evidence was admitted or as to the way in which the judge referred to it in the summing up. In our view Mr Mather-Lees was right not to make any complaint in this regard, but, in any event, there is, in our judgment, nothing in the evidence relating to Hopkins and Richards or in this part of the summing up which could possibly make Beard’s conviction unsafe. It follows that the application for leave to advance ground 3 must be refused. Ground 5

[64]Again, Beard renews his application on this ground after refusal by the single judge. Mr Davies submits that the evidence on the DAT tapes should have been excluded by reason of section 9(1) of the Interception of Communications Act 1985 (“the 1985 Act”), which provides, so far as relevant, as follows:

“1(1) Subject to the following provisions of this section, a person who intentionally intercepts a communication in the course of its transmission by post or by means of a public telecommunication system shall be guilty of an offence …. (2) A person shall not be guilty of an offence under this section if – (a) the communication is intercepted in obedience to a warrant issued by the Secretary of State ….

(a) any person holding office under the Crown; … ”

[65]Mr Davies submits that the evidence obtained from the DAT tapes, which were produced as a result of the installation of a covert listening device or bug without a warrant issued by the Secretary of State, was inadmissible under section 9(1). The listening device was placed in Harris’ car and was sufficiently sophisticated to monitor what Harris said on a mobile phone. The question for decision is whether such a device ‘intercepts a communication … in the course of its transmission … by means of a public telecommunication system’ within the meaning of section 1(1) of the1985 Act.

[66]In Effik

[1995] 1 AC 309

at 320 Lord Oliver, with whom the other members of the Appellate Committee agreed, approved the following passage from the unreported judgment of this court, given by Evans LJ, in Ahmed on 29 March 1994:

“Our conclusions are as follows: first, we hold that the interception of a communication takes place when, and at the place where, the electrical impulse or signal which is passing along the telephone line is intercepted in fact. Secondly, if there is an interception of the private system, the communication which is intercepted is not at that time passing through the public system. It is not, in our judgment, in the course of transmission by means of the public telecommunication system. Thirdly, the fact that later or earlier signals either have formed part of, or will form part of, the same communication or message does not mean that the interception takes place at some other place or time. Finally, ‘communication’ in our judgment, does not refer to the whole of a transmission or message; it refers to the telephonic communication which is intercepted in fact, and on the evidence to which I have referred that consists of what has been variously described as the electrical impulse or signal which is affected by the interception that is made.”

[67]In Morgans v DPP

[2001] 1 AC 315

, after referring to the last sentence of above passage, Lord Hope said (at p 333):

“It is sufficient, to constitute a communication by means of a public telecommunication system for the purposes of the Act, for an electrical impulse or signal to be transmitted from the telephone number from which the impulse or signal is sent to the telephone number with which it has been connected. The sending of an electrical impulse or signal in either direction will do, irrespective of the response which it elicits from the recipient and the length or content of the message which it conveys. Any intentional interception of that electrical impulse or signal while it is in the course of transmission through a public telecommunication system will be subject to the provisions of the Act.”

[68]We have reached the clear conclusion that, if that approach is adopted to the facts of this case, there was no interception of the communication within the meaning of section 1(1) of the 1985 Act. As we understand it, the listening device simply heard and recorded what Harris said into his phone. There was thus no interception of an electrical impulse or signal passing through the public telecommunication system. The situation was in essence the same as it would have been if the conversations had been heard by a policeman, say, hiding in the boot or standing on the pavement.

[69]In these circumstances an appeal on this ground could not, in our view, succeed. Mr Davies submits that that is too narrow a view of the section and that we should give it a purposive construction having regard to section 3 of the Human Rights Act 1998 and

Article 8 of the European Convention on Human Rights

. However, the conclusion which we have reached does not seem to us to be inconsistent with the policy or purpose of the 1985 Act and, in our judgment, it should be construed in accordance with its terms but having regard to its purpose. Moreover, we can see nothing unfair in permitting the Crown to rely upon what Harris said on the phone. In short, there was no reason to exclude the evidence under section 78 of PACE and no basis for holding that Beard did not receive a fair trial in accordance with

Article 6 of the Convention

. Moreover, that is so, even if there was a breach of Harris’ rights under Article 8: Khan

[1997] AC 558

, Schenk v Switzerland

(1988) 13 EHRR 242

and Khan v United Kingdom [2000] European Court of Human Rights 35394/97. It follows that Beard’s application for leave to appeal on this ground is refused. Ground 6

[70]Beard refused to answer a large number of questions in interview. The Crown wanted to adduce that fact before the jury and to invite the jury to draw inferences adverse to Beard because of that refusal under section 34(2)(d) of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”). Section 34 provides, so far as relevant:

“(1) Where, in any proceedings against a person for an offence, evidence is given that the accused – (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings … being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, … subsection (2) below applies. (2) Where this section applies – … (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.”

[71]In Argent

[1997] 2 Cr App R 27

at 32 Lord Bingham CJ, giving the judgment of the court, set out six conditions which must be met before the jury can draw such an inference. It is not, however, necessary to consider those here because the sole point taken by Mr Davies on behalf of the appellant Beard is that the judge should have excluded the evidence because the reason that Beard did not answer the questions was that he had received advice not to do so from his solicitor and because the reason he had given that advice could not fairly be put before then jury. Alternatively it is submitted that the judge did not give the jury a sufficient direction in the course of his summing up.

[72]Before considering those submissions, it is important to review the state of the evidence before the jury in relation to Beard’s refusal to answer questions. On a voire dire, in which Mr Davies sought to exclude the “no comment” interviews, Beard’s solicitor gave evidence that he had advised Beard not to answer questions because he was awaiting trial on another conspiracy to supply drugs and that he did not wish to provide the police with the opportunity to link the two cases together; he also said that he did not understand the nature or relevance of the seized documents which had been disclosed prior to interview. Beard did not himself give evidence on the voire dire. In fairness to the appellant, we should note that he was in due course acquitted of the earlier alleged conspiracy.

[73]As to the first point, if the interview had in fact been a colourable attempt by the police to ask further questions about a different allegation, it would indeed have been appropriate to exclude all reference to it, if only on the grounds of relevance. In fact, however, the interview was not an attempt to ask questions about a different allegation. Indeed, it was not suggested to this court that any specific question asked was irrelevant to the allegations in the present case. In these circumstances we do not see how advice given on the first ground could possibly have been a good reason for refusing to answer questions. It could not possibly have been accepted by the jury as a genuine reason for Beard’s refusal to answer questions about an entirely different allegation.

[74]As to the second point, whatever the understanding of Beard’s solicitor, most of the documents covered by the interview were recovered from Beard himself. In any event, the majority of the questions did not relate to documents at all. Yet, they still received no answer. In our view, the judge was entitled to refuse to exclude these interviews and to consider how to frame any ruling he gave pursuant to section 34 of the 1994 Act after the evidence had been heard.

[75]In fact, the solicitor did not give any evidence before the jury, and all that Beard said in evidence was that he was told that he was entitled to have a solicitor who told him to make no comment as he could not understand the paperwork. Mr Davies submits that the learned Judge should have tempered any direction which he gave to the jury in the light of what he had heard on the voire dire. To have done so, however, would have been quite wrong: the judge was directing the jury on the basis of the evidence which they heard. The difficulty is that the explanation (“not understanding the paperwork”) was manifestly absurd in relation to those documents which were recovered from Beard himself because he was in a position to explain privately to his solicitor what each document meant. In any event, the fact that the solicitor “could not understand the paperwork” could not provide a reason for Beard’s failure to answer questions which did not relate to the documents.

[76]In the circumstances, the judge had a difficult task to perform. Mr Davies criticises him for failing to emphasise that the fact that a person who is advised by his lawyer to maintain silence must be given appropriate weight. He relies on the decision of the European Court of Human Rights in Condron v United Kingdom

(2001) 31 EHRR 1

, [2000] Crim LR 679 . In fact that decision was made after the judge summed this case up to the jury and before the implementation of the Human Rights Act 1998. Although it is right to say that in the present form of standard Judicial Studies Board Direction, which was drafted after the decision in Condron , judges are advised to direct juries that, if the defendant has been advised not to answer questions by his solicitor, that is obviously an important consideration, the question is whether the judge sufficiently directed the jury on the facts of the instant case.

The judge directed the jury as follows:

“The defendant Beard, and I am sure you will forgive me if I refer to them by surname just in order to save time, the defendant Beard as part of his defence has given evidence to the effect that his contact with Martin Harris just before Toys ‘r’ Us was to do with his concerns that Martin Harris was seeing his daughter and that the Toys ‘r’ Us meeting was a chance one, that he sold the Mitsubishi Shotgun as a result of an agreement with Martin Harris made on the basis that he, Beard, had experience in selling cars, that any contact with Martin Harris was to do with counterfeit goods and now explains the figures in the Happy Shopper book found in his house as Dream Team calculations. ... The prosecution case is that in the circumstances when they were charged they could reasonably have been expected to mention them. In the case of Beard they assert that the decisions whether or not to answer questions were Beard’s. He had a solicitor present who may have advised him to no comment but Beard was in a position to answer questions about his own finances and documents, there was nothing hard about explaining the Happy Shopper book and any telephone numbers or his personal finances. He was not being asked about the complexities of the case but his own role. He took advantage of that, the advice of his solicitor, with the result that he was able to avoid giving any account of himself until he went in the witness box, which is precisely the situation the legislation was intended to deal with. ... You have got to consider the argument against each defendant separately as each case is unique to that defendant and also each piece of evidence alleged not to be mentioned must be considered separately. If you are sure that a defendant did fail to mention a given piece of evidence when he was questioned, decide whether in the circumstances it was a fact which he could reasonably have been expected then to mention. If it was, the law is that you may draw such inferences as appear proper from his failure to mention this matter at the time. Failure to mention such a fact cannot on its own prove guilt but, depending on the circumstances, you may hold it against him when deciding whether he is guilty. That is, take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so. There is evidence before you on the basis of which both defendants’ advocates invite you not to hold it against them that they failed to mention something. Beard’s case is that he consulted with a solicitor. Take it in context. Look at the complexity of the case which they say was of magnitude but he had consulted with a solicitor. The solicitor was being brought into a case involving others. The solicitor had an hour to discuss, and he might indeed have had difficulty in comprehending what the documents mean, and that you should not draw inferences that matters are subsequently made up. There were 240 minutes in interview, as police officers had lots of information to deal with. When you look at the interview record and the defendant being asked if his daughter was involved it makes a person think, as Mr Peter Davies said, I will keep my mouth shut and see what’s coming and the defendant might not mention his daughter because that is too delicate. .... If you think that those matters amount to reasons why you should not hold the defendant’s failure against him, do not do so. On the other hand, if those reasons do not, in your judgment, provide an adequate explanation or you are sure that the real reason for failure to mention a fact was that there was no innocent explanation to offer, then you can hold it against the defendant.”

[78]It can be seen from those passages that the principal features of the law were explained to the jury. Thus, they were reminded of the specific facts relied upon by the Crown which were not mentioned in interview by Beard, the fact of the caution, the need for a decision whether in the circumstances each such fact was one Beard could reasonably be expected to mention and the use which they might make of it. They were specifically reminded of the submissions made on behalf of Beard as to the reason why they should draw no adverse inference, including the fact that he had consulted his solicitor and the reason Beard gave in evidence for the advice, namely the difficulty in understanding the documents.

[79]In our judgment, the judge was directing the jury to consider the matter from Beard’s perspective having received the advice which he had received and, subject to one point, we do not think that the directions set out above can fairly be criticised. That one point is this. It may be noted that at the end of the direction quoted above the judge used the word “or” when he should have said “and”. However, in the context of the direction as a whole, it is in our view clear that the judge was not, in reality, directing the jury that they could draw an adverse inference if they thought either that there was an inadequate explanation or , alternatively, that the real reason was that there was no innocent explanation to offer. If there was an innocent explanation, however inadequate, the prosecution case is not advanced by failure to mention it. As a fair reading of the summing up makes clear, the word “or” is a slip of the tongue for “and”. We do not believe that it would have been understood by the jury, in this lengthy oral direction, otherwise. It is clear that the point did not occur to counsel for either the Crown or the defence at the time, since no-one mentioned it to the judge before the jury retired. If any counsel had thought it significant, we have no doubt that it would have been mentioned. In any event, that error, on its own, certainly does not, in our judgment, render the conviction unsafe.

[80]We should, we think, say a word about the decision of the European Court of Human Rights (“the ECHR”) in Condron notwithstanding that it was decided after the conclusion of the trial in this case. In paragraph 22 the ECHR set out this passage from the summing up:

“I turn to a new topic in our law. ... It is the law that these defendants did not mention certain facts when questioned about them in interview by the police. In the past that would not have been evidence that could in any way be held against them but now it is possible that it can be though it is for you to judge whether in fact you do hold it against them. The first applicant has relied in evidence on an explanation as to the passing of that cigarette packet which is the subject of count 1. ... Firstly, it could have been cigarettes or it could have been money. He also said in evidence to you, ‘There were no drugs ever passed through our hands to Curtis’. He admits that he did not mention that when questioned under caution before being charged. ... I turn now to [the second applicant] because she had relied in her own evidence on the fact that she had asked for cigarettes and was passed a packet, took a couple, and handed the packet back. She admits that she did not mention that when she was questioned under caution before being charged. ... Also in [the second applicant’s] interview she was asked about another matter, and I deal with this because in her evidence she relied on the fact that on 26 April at 11.30 am, a little before the incident with the cigarette packet, she handed Curtis some ‘sticky chewing gum’ ... so the chewing gum is again not mentioned. ... She also in the course of her evidence relies on her telling you that here were only innocent, neighbourly exchanges of commonplace items from her balcony and she admits that she never mentioned those matters to the police. ... The prosecution case, members of the jury, is that (and it is for you to judge whether this assists you in your judgment to reach a verdict) in the circumstances when each of these defendants were questioned on these topics, he or she could reasonably be expected to have mentioned what they said in court. The defendants explained that their ‘no comment’ answers, speaking generally because of course they put it in more detail, the [applicants] said they were suffering from withdrawal symptoms and relied on Mr Delbourgo, their solicitor’s advice that he could see they were suffering from withdrawal symptoms and should not answer questions because in his judgment of their appearance they were unfit for interview despite the known and expressed view of the FME, which means Force Medical Examiner and is in fact a doctor, who comes along to police stations to deal with problems of this sort. ... The law is ... that you may draw such inferences as appear proper from a defendant’s failure to mention the points I have referred to in their respective interviews. In each case it is relevant only to the case against the defendant concerned. You do not have to hold it against him or her. It is for you to decide whether it is proper to do so. Failure to mention the points in interview cannot on its own prove guilt but depending on the circumstances you may hold it against him or her when deciding whether he or she is guilty. You should decide whether in the circumstances which existed at the time of the interview the matters were ones which the defendant concerned could reasonably be expected then to mention. Members of the jury that is all I have to say at this stage about the law.”

[81]In paragraph 26 the ECHR observed that this court rejected the submission that the judge had been wrong to allow the jury to draw adverse inferences from the applicants’ failure to answer questions in interview. It quoted this extract from the judgment of Stuart-Smith LJ:

“...both [applicants] knew that the Force Medical Examiner certified that they were fit to be interviewed and therefore that medical opinion differed from that of their solicitor. Both were clearly advised by their solicitor that if they failed to mention material facts at the proposed interview, they could be criticised if the matter came to trial. That advice was understood; he also made it plain that this was entirely their choice. At the beginning of the interview both were given the caution in its current form. ... Both indicated that they understood that caution. Both were told that if they felt unwell during the interview, they could let the interviewer know and it could be stopped. In these circumstances the fact-finding tribunal might well consider that if the [applicants] had an innocent explanation of the incriminating evidence about which they were specifically questioned, they would have mentioned it.”

[82]The ECHR continued:

“27. The Court of Appeal then considered the applicants’ criticism of the trial judge’s summing up in so far as he omitted to remind the jury that “they could only draw an adverse inference if, in spite of any evidence relied upon to explain the failure to mention the relevant matters (or indeed in the absence of such evidence) they conclude that such failure can only sensibly be attributed to the fact that the appellants must have fabricated the evidence subsequently.”

The Court of Appeal, with reference to the dicta of Lord Taylor CJ in R v Cowan ([1996] Queens Bench 373) (see paragraph 33 below) considered that it would have been desirable if the trial judge had directed the jury along the following lines: “if despite any evidence relied upon to explain his silence or in the absence of any such evidence the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.” 28. However, the Court of Appeal did not find that this lacuna in the summing-up meant that the convictions were unsafe, having regard to the weight of the other evidence. Lord Justice Stuart-Smith explained in this connection: “We have already referred to the substantial, almost overwhelming evidence of drug supply from what was found in the [applicants’] house. Although there were no scales, all of the other paraphernalia of supply was present. All but one of the jury must have rejected the [applicants’] explanation of the police observations, much of which was recorded on video, the presence of the matching wraps in Curtis’ flat and the elaborate security arrangements at the applicants’ own flat. The acquittal of Curtis shows that the jury regarded the evidence of the interviews as insignificant. Curtis also failed to answer questions in interview.” 29. The Court of Appeal dismissed the applicants’ appeal in its judgment delivered on 17 October 1996.

[83]The ECHR expressed its conclusions in this way in paragraph 61:

“It is to be noted that the trial judge directed the jury on the issue of the applicants’ silence in accordance with the terms of the relevant specimen direction at the time (see paragraph 32 above). The Court notes, however, that the formula employed by the trial judge cannot be said to reflect the balance which the Court in its John Murray judgment sought to strike between the right to silence and circumstances in which an adverse inference may be drawn from silence, including by a jury. It reiterates that the Court stressed in that judgment that, provided appropriate safeguards were in place, an accused’s silence, in situations which clearly call for an explanation, could be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution against him (see paragraph 56 above). The Court further noted, with reference to Articles 4 and 6 of the Criminal Evidence (Northern Ireland) Order 1988, that those provisions only permitted a judge to draw common-sense inferences which he considered proper in the light of the evidence against the accused ( ibid ., p. 50 & 51). However, in the instant case the applicants put forward an explanation for their failure to mention during the police interview why certain items were exchanged between them and their co-accused, Mr Curtis (see paragraph 19 above). They testified that they acted on the strength of the advice of their solicitor who had grave doubts about their fitness to cope with police questioning (see paragraph 21 above). Their solicitor confirmed this in his testimony in the voire dire proceedings (see paragraph 18 above). Admittedly the trial judge drew the jury’s attention to this explanation. However, he did so in terms which left the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied as to the plausibility of the explanation. It is to be observed that the Court of Appeal found the terms of the trial judge’s direction deficient in this respect (see paragraph 27 above). In the Court’s opinion, as a matter of fairness, the jury should have been directed that if it was satisfied that the applicants’ silence at the police interview could not sensibly be attributed to their having no answer or none that would stand up to cross-examination it should not draw an adverse inference.”

[84]It is important to observe that each case depends upon its facts. The facts here are very different from those in Condron. Thus Beard’s explanation for not answering questions was quite different from that in Condron . In particular, in the present case Beard simply said that he had been advised by his solicitor not to answer questions and the only reason which he gave in evidence was that the solicitor said that he had not had time to study the documents. That explanation could provide no sensible basis for saying no comment in answer to a wide variety of questions which had nothing to do with the documents. Moreover, the other reason given by the solicitor on the voire dire could not possibly have provided an excuse for not answering questions which related only to the allegations in this case. No-one in Beard’s position could genuinely have thought that it did.

[85]In these circumstances it appears to us that the judge had to be careful to deal with the matter generally, so as not to give undue emphasis to those questions for which no reason for failure to answer was, in reality, provided. Obviously, the facts of each case affect the nature of the direction that must be given. Here, although the direction might have been cast in somewhat different terms, in the light of the evidence heard by the jury, even having regard to recent developments in the period since Condron , we remain of the view that this direction is not so lacking as to render the conviction unsafe.

[86]We would add by way of postscript that nothing in this judgment is intended to alter in any way the advice given in the present standard Judicial Studies Board direction. Nevertheless we have reached the clear conclusion that Beard’s conviction is safe and ground 6 fails. It follows that Beard’s appeal against conviction fails and must be dismissed. - - - - - - - - - - - - - LORD JUSTICE CLARKE: For the reasons contained in a written judgment, copies of which have been made available to the parties and which are available to the press or the public, should they be interested, the appeals of Smart and Beard against conviction are dismissed.PRIVATE Mr Davies, I think there is an application for leave to appeal against sentence. MR DAVIES: I do seek to renew the application on behalf of David Beard. (Submission re: renewed application for leave to appeal against sentence on behalf of David Beard followed.) LORD JUSTICE CLARKE: This is a renewed application for leave to appeal against sentence by David Beard. This judgment should be read in conjunction with a judgment which we have just delivered, dismissing the appeals against conviction of both Beard and Smart. In the course of that judgment we set out the sentences passed by the judge on a number of people for various offences, including conspiracy to supply cannabis resin. We will not repeat here what we said in that judgment. Beard was sentenced to nine years' imprisonment. In refusing leave to appeal the single judge, Rafferty J, said this:

"I have considered the papers in your case and the grounds of appeal; though the document may have been ambiguous it was open to the judge to construe it as he did. You played your part in a significant, organised criminal agreement and nine years is unimpeachable."

The reference by the single judge to "the document" is a reference to the notebook kept by Martin Harris to which extensive reference has been made in our earlier judgment. Mr Davies submits that a sentence of nine years was manifestly excessive having regard to three factors: first, the evidence relied upon by the judge; secondly, the tariff for this kind of offence as appears from the authorities; and, thirdly, the sentences passed upon the others or some of the others. The judge passed sentences on all those concerned on 7th July 2000. His approach can be seen from the following account which is largely taken from his sentencing remarks. Martin Harris was at the heart of the conspiracy. The conspiracy ran for some thirteen months and involved bringing into South Wales large quantities of drugs: a minimum of 50,000 ecstasy tablets, reduced to 16,000 on the basis of 100% purity; 2 kgs of cocaine at 130%; 30 kgs at least of amphetamine at 100%; and about 1,500 kgs of cannabis resin. It was alleged that, according to records kept by Martin Harris, the receipts or street value exceeded £3.5 million. This resulted in large seizures of drugs: 26,111 ecstasy tablets from Richards and Hopkins, who acted as couriers; 46 kgs of cannabis resin from Francis acting as a courier; 24 kgs of cannabis resin; 1 kg of cocaine; and 25,000 ecstasy from Phillip Evans and Toms. The enterprise involved obtaining drugs from a variety of sources. The judge in the course of his sentencing remarks set out some of the evidence relating to that. He observed that the extent of the conspiracy could be detected from the notebook. The importance of the book became clear as the trial progressed - that is the trial of Beard and Smart, since they pleaded not guilty whereas the others pleaded guilty. The judge observed that it was a contemporaneous running record, admissible against all the conspirators. The judge formed the view that it was totally reliable as a record, setting out running accounts with no less than 73 people who purchased the drugs, usually in quantities large enough for large-scale resale. He observed that 14 of the 73 spent over £100,000. During the course of the trial it became clear that in some cases it was possible to determine the drugs supplied by reference to the price shown in conjunction with other lists kept by Martin Harris. The judge said that the exercise undertaken by the prosecution before the jury was totally convincing and could easily be repeated. It was also confirmed by Martin Harris in interview. The result of all that was to establish a well-run network for distribution. Persons were needed to ferry the drugs about, others to mind the drugs, others to sell, some to combine two or three of the operations, and others collected money in thousands of pounds. The drugs were distributed in Swansea and Bridgend and the Rhondda and Rhymney Valleys as well as in Cardiff. The judge drew attention to the lifestyle of Martin Harris. He described the organisation as "elaborate". He also described the bugging of Martin Harris's telephone in his car to which we referred in our earlier judgment. One of the aspects of the transcripts to which he referred was their reference to large-scale dealings, the setting up of the distribution of about 100 kgs of cannabis resin which came into South Wales on 23rd March and he observed that what was notable was calls at that point directed to or from both Beard and Smart. Observations, he said, also revealed the role played by Norman Harris as a driver and courier to Swansea and a general assistant. As to Toms, he said that he was shown to be involved in a way associated with the purchase by Harris of large amounts of drugs, and he, Toms, also controlled Phillip Evans who stored large quantities of drugs at his house in the Rhondda. He referred to the fact that there were two significant seizures of drugs. The first, the 26,111 ecstasy tablets, was from Richards and Hopkins; and he described the events which led to their arrest. He then described the events of 23rd March in this way:

"Finally, in conjunction with Beard, Martin Harris arranged a delivery of about 100 kgs of cannabis resin from his suppliers, seen previously at Reading. They all met in Central Cardiff. Contact was made with Binding and Francis to act as couriers. Exchange took place. It was observed. Binding was given £5,100 in cash and Francis 41.6 kgs of cannabis resin. Martin Harris's telephone conversation showed how he had orchestrated the whole matter."

He observed that Beard was making crucial calls just before that event. He further referred to the fact that among those whom Harris supplied with drugs for onward sale were Aldron and Smart. Aldron pleaded guilty on the first day of the trial. Smart he described as a Cardiff supplier. The telephone logs and records of Harris showed that at the end of the conspiracy Harris was still in touch with Smart, visited him, discussed drugs supply with him and Smart tipped him off about the National Crime Squad watching him. The judge also observed that the books revealed that Smart dealt in 3 ozs of cocaine and 11 kgs of cannabis resin. He described Martin Harris as having agents throughout South Wales who brought in several thousands of pounds for him. In short, this was a well-organised and coordinated conspiracy. In summary, the judge said that this was a substantial enterprise. Analysis of the books showed dealings of at least 1,500 kgs of cannabis resin, 2 kgs of cocaine and 50,000 ecstasy tablet, the value at street level being at least £3.5 million, with 73 people involved as sub-distributors. Having set out the facts, the judge correctly directed himself by reference to a number of well-known sentencing principles: (1) This was not a case of importation into the United Kingdom, which is regarded perhaps as the most serious class of drugs offence, but, as

the judge put it:

"... persons at the centre or high up in an elaborate conspiracy involving the bringing in of large quantities of drugs to distinctive and well-defined areas such as this are very high up the scale. Here, the main conspiracy lasted a year and involved repeated supplies to the same areas and the same sub-suppliers."

In that regard he referred to Chisholm , CA 98/02192/Y2, 29th March 1999. (2) Couriers and minders are treated less seriously than traders, although, as ever, all depends on the circumstances. (3) Dealing in more than one type of drug must be reflected in the sentences. (4) As to the general level of the conspiracy, in relation to Martin Harris

the judge said this:

"This must be a determining factor for sentence. It is based upon the supply of massive quantities of cannabis resin: 1,500 kgs, of which almost 200 kgs went to you, Beard. Then, upon the supply of large quantities of cocaine and ecstasy. As far as cannabis resin is concerned, the maximum sentence I am allowed to pass is fourteen years and, even on a guilty plea, one approaches the thirteen years which was passed upon a man called Pollett on a guilty plea to importing 1,600 kgs. But, the length of sentence will ultimately be determined by Class A drugs in combination with Class B."

The judge then referred to Scamaronie

(1992) 13 Cr App R (S) 702

, Richardson ,

(1994) 15 Cr App R (S) 876

and Warren and Beeley

[1996] 1 Cr App R (S) 233

. He said that Harris was in the top bracket. (5) The judge stressed the need to establish the amount of the drugs in each case. The judge then passed the sentences described in our earlier judgment. In particular, he sentenced Martin Harris to fourteen years on the cocaine count and to twelve years concurrent on the other counts. In doing so he observed that this was Harris's second supply and conviction; that he took account of his guilty plea, his candid interviews, although the evidence was, he said, overwhelming, and to his remorse for bringing his father into it. Since Mr Davies has submitted that the sentence passed on Beard is out of line with those passed on others, including in particular Norman Harris, we set out what the judge said in relation to Norman Harris. He said this:

"You were in a subordinate position to your son but the observations show that you were facilitating very heavy drugs supplying. On one occasion £80,000 was deposited at your house. Lists were kept there. You acted as a courier of money from Aldron to Martin Harris - £2,500 at a time - and, above all, you were involved in collecting drugs, delivering to Swansea and also further transactions would indicate that a minimum of 200 kgs of cannabis resin was collected by you during six or seven trips down the M50/M5 when you were acting as a driver for your son. I take into account your age, good character, remorse, anxiety over the delay but you also assisted in playing for high stakes. This is very large-scale trafficking, the trips involving money, between £50,000 and £80,000 a time. You played a vital role in releasing massive quantities of controlled drugs on to the streets of South Wales. Importation of such amounts would attract about nine years as a starting point. You pleaded guilty. Taking into account your role, the fact that it is not importation but supply, and all other matters, the sentence I pass upon you is five-and-a-half years' imprisonment."

Norman Harris, like Beard, was concerned with cannabis resin. Shaun Toms, on the other hand, was concerned with three separate conspiracies: conspiracy to supply cannabis resin involving Toms as a courier for no less than 100 kgs.

The judge continued:

"In addition, you personally dealt in 7 to 8 kgs of cannabis resin. Your other role was to store drugs at the home of Phillip Evans. ... You controlled Evans' property to a certain extent. Your actions were calculated to allow a kilogramme of cocaine into South Wales as well as 2,560 Ecstasy tablets, the equivalent of 670 to 100 milligrammes. That is a formidable amount. In addition, your presence at key moments, in service stations, your travelling around South Wales, reveal a significant, if subordinate, organisational role to Martin Harris. You have a bad criminal record, especially for violence but not for drugs. I have no doubt you were a key player and, unlike Norman Harris, you got involved in Class A."

The judge then referred to Aroyewumi [1995] 16 Cr App R (S). He said he allowed for Toms' guilty plea, his role as a supplier and minder, and he sentenced him to five years on count 1, five years on count 2 and seven years on count 3, all sentences concurrent. Then as to David Beard, the judge said this:

"I have to deal with you on the basis of conviction after trial for conspiracy to supply cannabis resin. The prosecution case against you was based upon two main tenets. You were involved in assisting Martin Harris in activities in relation to cannabis resin at the point of supply to Harris or in distributing cannabis resin on his behalf. To that end the prosecution relied upon telephone conversations you had with Harris, indicating work was available to you. Your presence at Toys 'R' Us, when either up to 100 kgs of cannabis resin was taken delivery of, or arranged for immediate delivery elsewhere and the on-going arrangements you then made illustrate your role. Secondly, the contents of Harris's book and the constant telephone communications between you; the books set out the amount of cannabis resin you had and supplied personally and accounted for. You owed Harris up to £36,000 for drugs, a matter referred to in overheard conversations and on other sheets of paper recovered from Harris. The book reveals involvement in 190 kgs of cannabis resin at prices of between prices £1,400 and £1,500 a kilogramme. It was submitted to me during mitigation that I should discount all or part of the contents of the book on the basis that it might refer to you dealing in other drugs, primary Class A. As the prosecution said at the time, it was a novel submission. It seemed to me to have no basis in fact. There is no evidence to connect you, Beard, with any other drug. The evidence and observations, telephone calls, connects you were cannabis resin. The jury convicted you on the basis of observations, phone calls and books on that basis. No other document suggests supply of other than cannabis resin, by comparison with Smart where ounces and £900 are referred to. I am totally satisfied that the dealings refer to cannabis resin. There is no evidential basis upon which I can say otherwise. This is substantial dealing, putting you just one category below the maximum category for this type of offence. The position is further exacerbated by your record. You have graduated from car-ringing and cheque fraud to drug dealing. Your previous convictions suggest significant dealing. You were in Central Square, Cardiff, having bought 20 9oz bars of cannabis resin from London on a train in 1996 and you were arrested and sentenced to three years' imprisonment. One of the most telling questions asked in cross-examination of you was asked by Mr Stephen Hopkins at the beginning of cross-examination when he asked you to point to any way at all you had made any money legitimately in the last decade. You were quite unable to answer the question. I have read the authorities. This is large-scale drug dealing. If one looks at the cases of Ronchetti [1998] 2 Cr App R (S) 100, Attorney-General's Reference No 19 of 1997 and Sturt (1993) 14 Cr App R (S) 440, then taking into account the three factors of 193 kgs, your role in the conspiracy and past record, at a time of increasing concern expressed in all quarters about repeated large-scale drugs supply, the least sentence I can pass upon you, reflecting these factors and conviction after trial, is nine years' imprisonment."

As we indicated earlier, the judge also passed sentence on Nicholas Aldron, whose sentence was much affected by the basis of his plea, and on Francis Richards and Hopkins, who were sentenced as couriers. Mr Davies submits that the judge was not entitled to sentence Beard on the basis of involvement in the purchase of 190 kgs of cannabis resin. He submits that an analysis of the key page in the notebook which has 'Dave B' written at the top suggests that there were three separate accounts being kept which may have involved trading in three separate commodities. He recognises that those commodities must have been drugs and not some lawful trade, but he submits that the judge should not have concluded that all the transactions shown on the 'Dave B' page related to cannabis resin. We are unable to accept that submission. The judge had presided over the trial of Beard and Smart and was in an excellent position to judge the scale of Beard's participation in the conspiracy. There was no suggestion that Beard and Harris were engaged in a legitimate business. Moreover, as the judge rightly said, there was no evidential basis upon which he could conclude that these transactions might have related to Class A drugs and not cannabis resin. In our judgment the judge was entitled to sentence Beard on the factual basis on which he did. The judge was also in a good position to decide upon the relative culpability of the various people who fell to be sentenced. As the extracts from his sentencing remarks which we have read show, he paid careful regard to the role of each. We can see no unfair disparity between the sentence passed on Beard when compared with sentences passed on the others. We recognise that Beard was sentenced only for the cannabis resin conspiracy. However, he was not a man of good character, as the judge observed. On 6th September 1996 he had been sentenced to three years' imprisonment for possession of a controlled drug with intent to supply. Although Mr Davies has advanced every argument which could possibly be advanced on behalf of Beard, we do not think that any assistance is to be obtained by considering a comparison with, for example, Mr Aldron, whose sentence was much affected by the basis of his plea, or upon those like Richards and Hopkins, who were sentenced as a courier, as indeed was Francis. Mr Davies has drawn our attention to a comparison with Norman Harris, Martin Harris's father. However, the judge said that at a trial importation at any rate of the amounts with which he was concerned would attract nine years as a starting point. He in fact sentenced him to five-and-a-half years having regard to his age, his good character and his plea. David Beard was not able to rely upon any of those mitigating factors. So there was no unfair disparity, in our judgment, between the sentence passed on Beard and the sentence passed on any of the others. The question remains whether the sentence was manifestly excessive in the light of the authorities, including, in particular, Ronchetti to which the judge referred. Mr Davies has drawn our attention to part of the judgment in that case, where Rose LJ, giving the judgment of the Court, reviewed a large number of authorities. In the course of his judgment, Rose LJ said this:

"... there is no case to which our attention has been drawn where the importation of less than one metric tonne of cannabis resin has, following a trial, attracted a sentence of more than ten years upheld on appeal."

He then referred to a number of cases and said this:

"We have been invited by the Crown to give some indication for the guidance of judges at first instance, in relation to the sort of level of sentence which is appropriate for importations of the order of 100 kgs. In conformity with, but by way of addendum to, Aramah , we would suggest that, following a trial, the importation of 100 kgs by persons playing more than a subordinate role should attract a sentence of seven to eight years. In our judgment, ten years is the appropriate starting point, following a trial, for importations of 500 kgs or more by such persons."

We were also referred to Fishleigh (February 5th, 1996); Vickers (January 19th, 1999) and Golder

[2000] 1 Cr App R (S) 59

. None of those cases, in our judgment, affect the approach identified in Ronchetti . The judge, as we have indicated, identified the purchase of about 190 kgs of cannabis. In our judgment, while the sentence of nine years is at the top end of the permissible bracket, it cannot properly be said to be outside the bracket. Each case depends upon its facts. The judge had every relevant circumstance in mind when he passed the sentence which he did. There is, in our view, no basis on which we could properly say that the sentence was manifestly excessive. This was large-scale drug dealing in which Beard played a full part. We would, however, like to add this. Since the hearing of the appeal against conviction we have received a moving letter from David Beard's sister, who has supported him throughout and who is here today. That letter includes this:

"David was very close to my father who had Alzheimer's disease and when dad died after a long horrific illness, David did lose the plot a bit - but he is essentially a good kind human being, very gentle - he has been in prison for over two years. It is seriously wrong and he most definitely should not be there."

We can well understand those sentiments and we hope that the support of his family will be taken into account when he comes in due course to apply for parole. But this was a very serious offence. In short, we agree with the single judge: Beard played his part in a significant, organised criminal agreement, for which nine years is unimpeachable. We are very much obliged to you, Mr Davies, for your assistance. The application is however refused.